Lockwood v. Paul Boynton Co.

21 Misc. 162, 47 N.Y.S. 1140

• Court: New York Supreme Court
• Decided: August 15, 1897
• Status: Published

Opinion

Russell, J.

It would seem from'the complaint and application •in this action that the plaintiff, as assignee for the benefit of creditors, is carrying on at Coney Island a place for selling and drink-ink liquids, spirituous and otherwise, under a lease renewed to him as such assignee for the period of eight years, and, for the protection and enhancement of the good will of that business for the period of the renewed lease, complains of an act of the lessor, the defendant, calculated to seriously embarrass that good will as to the number of persons likely to patronize the plaintiff’s bar. That act complained of consists of charging an admission fee of ten cents to the defendant’s inclosure to persons seeking the recreations attainable within that inclosure, wherein is the plaintiff’s building which bis assignor erected under the terms of the lease, The plaintiff strongly urges that, in the natural order of events and under the common impulses of human nature, more people are likely to seek his bar in case of free admission to the inclosure than if it cost ten cents to get to the place where its attractions are apparent.

There is considerable force, in this" assertion, but a difficulty i affording remedial relief arises from the fact that neither the leas nor the renewal contain any covenant or promise that the defendant will refrain from charging an admission fee to the aforesaid-inclosure. The plaintiff, however, counts upon conversations with the president of the defendant company .by which, as he claims, it was understood, that the admission should be free, and, in further corroboration of those conversations,, produces a placard, a handbill of considerable size, by which the defendant company invites the public to shoot the chute at this noted place of attraction on Coney Island, with admission free to the inclosure. The defendant claims that the president of the company in any loose conversations he may have had,' or in issuing any placard for free admission, did not deprive the company of £he right to charge an admission to its own inclosure if it thought wise to do so, and, that no rights being reserved in this respect tb the plaintiff, he cannot complain; that it is a matter of business judgment as to the method by which the greatest number of dimes may.,be received by the parties interested respectively from a pleasure-seeking public, the defendant company being interested in the receipts of the sale of liquids at the bar of the plaintiff to the extent of 12i per cent, as compensation for the privilege of vending those liquids, and being also interested in attracting as many people as possible to shoot its chute for which it receives a fair compensation; that the ten-cent charge to the inclosure might as well deter people from coming to shoot the chute as to call for a supply of liquid refreshments, and that there was no implied agreement, as there certainly was no express one contained in the lease, not to exercise its best judgment as to the propriety of charging or not charging an admission to the inclosure, the argument in a measure being that free admission might attract a crowd of people with more curiosity than coin, and perhaps more doubtfulness of character than desire for innocent amusement, and so after all the patronage of the better class,, likely to observe, enjoy and spend, would be best enhanced by a small but sufficient charge for admission to the attractions within the inclosure.

I ám inclined to think that the plaintiff has not, upon the papers presented, made out a case for present injunction, and that his rights must be deferred to the trial where, if he succeeds, a permanent injunction may be had, with damages for past injury.

Motion denied, with $10 costs.